from: New York Law Journal
Reprinted with permission from the March 5, 2015 edition of the New York Law Journal © 2015 ALM Media Properties, LLC. All rights reserved. Further duplication without permission is prohibited. For information, contact 877-257-3382 – [email protected] or visit www.almreprints.com.
Forum Non Conveniens in International Matrimonial Litigation
In this era of globalization, many families maintain multiple residences in different countries and bear different nationalities. Consequently, family members may be subject to concurrent jurisdiction of multiple countries. New York courts, through various statutes, are given broad jurisdictional power to entertain matrimonial and family law actions involving international families. At the same time, pursuant to the doctrine of forum non conveniens, codified in CPLR 327(a), a New York court may decline jurisdiction and dismiss an action where the action would be better adjudicated elsewhere.1
Increased use of the doctrine of forum non conveniens in recent matrimonial actions reflects a growing trend among New York courts of reluctance to hear cases brought by non-U.S. residents.2 New York courts have emphasized that “it is the convenience of the court, not that of either litigant, that controls” a forum non conveniens determination.3 In some cases, foreign matrimonial litigants’ choice of New York courts was characterized as “forum shopping.”4
In applying the doctrine of forum non conveniens, the court must consider and balance competing public and private interest factors, but “no one factor is controlling” as the application of the rule of forum non conveniens should be flexible and be “based upon the facts and circumstances of each case” in order to achieve “justice, fairness and convenience.”5 Thus, the emphasis on administrative considerations could be dubitable in international matrimonial cases, particularly when the desire to conserve judicial economy trumps the compelling interests of dependent spouses and children.
Although the process is burdensome, it is necessary to examine not only the factual circumstances of a case but also the laws and procedures of an alternative forum when determining whether it is fair and just to defer international matrimonial matters, in part or in their entirety, to a foreign court. This article discusses some unique factors that should be considered in applying forum non conveniens in international matrimonial actions.
Some courts have declined jurisdiction over child support and deferred it to the child’s home country where evidence of a child’s expenses, financial needs and lifestyle are more readily available.6 Deferring the determination of a New York resident’s support obligation to a foreign court on conveniens grounds is most problematic and troubling.
First, a parent’s support obligation is primarily based on his income. Secondary factors, such as a child’s actual financial needs or lifestyle may be considered only when the non-custodial parent’s support obligation calculated based on his income is unjust or inappropriate. If a non-custodial parent resides in New York, evidence of his income, assets and earning ability would be most readily available in New York, and consequently New York would be the most appropriate and convenient forum to determine his child support obligation.
Compelling a custodial parent to ask a foreign court to determine a New York resident’s support obligation will undoubtedly place unfair burdens on the custodial-parent and the foreign court. In addition, the unstated presumption here is that a child support determination should be influenced by the cost of living of a child’s home country, so that a child living in a less affluent or costly environment may be entitled to less support. This dogma does not impact child support determinations made by New York courts in interstate proceedings—why should it arise in international proceedings?
Secondly, the court of the child’s home country may or may not retain long-arm jurisdiction over New York residents under that country’s law. By analogy, New York courts have often dismissed support cases against nonresidents for lack of personal jurisdiction or forum non conveniens.
Thirdly, if a non-custodial parent resides in New York, enforcement of the order will eventually lie in New York, regardless of the court from which the order is initially obtained. Putting off until tomorrow what is better done today may not be just or fair, and in many cases does not serve the best interests of the children.
Under certain circumstances, a New York court may be well positioned to determine support, but lack the judicial leverage to enforce its decision in a foreign country. Some courts considered the perceived difficulty in enforcement a justifiable basis of a forum non conveniens dismissal.7 This is a particularly slippery slope. It compromises the rule of law to deprive a party of a support order simply because the court feels that enforcement of such an order could be problematic.
When applying forum non conveniens, some courts weighed heavily difficulties in administering foreign assets and granted dismissals to avoid being saddled with adjudicating significant foreign assets.8 Indeed, New York courts should not be burdened with imported litigations when the parties’ finances lack sufficient nexus to New York. However, a few scenarios beg caution.
In cases where the parties own substantial properties in multiple jurisdictions, deferring property issues entirely from New York to a foreign court would simply shift the administrative burden from one court to another and cause undue delay. Therefore, a conditional dismissal that retains jurisdiction over the parties’ New York property but dismisses claims to foreign assets to the court where the assets are located may be appropriate.9
Overemphasis on the burden of administering foreign assets could undermine resident plaintiffs’ ability to avail their own court system. A defendant might argue that regardless of the parties’ respective residencies, a plaintiff’s claims to foreign assets must be dismissed on forum non conveniens ground due to excessive administrative burden, and thus could successfully keep foreign assets out of a non-titled spouse’s reach. This would essentially “turn the doctrine of forum non conveniens on its head”10 as the purpose of the forum non conveniens doctrine is not to enable defendants to evade unfavorable forums but to prevent plaintiffs from engaging a forum that is most inconvenient for the defendant.
New York courts have broad jurisdictional power over the parties’ entire marital estate regardless of where each individual piece of property is located. By contrast, some countries apply a contrivance of in rem jurisdiction rules in which property, especially real property, is thought to be subject to the jurisdiction and law of the place where it is located. For example, Ecuadorian courts do not take jurisdiction over a couple’s foreign assets. Similarly, Chinese courts may not entertain claims to marital property abroad for perceived lack of jurisdiction. Because these courts choose to so limit their jurisdiction, some litigants are forced to resort to New York courts. Thus, in cases involving countries that profess in rem jurisdictional rules only, New York courts should consider whether a dismissal would actually serve judicial economy.
A striking feature of New York family law is its willingness to protect dependent spouses and children’s financial interests. New York law provides not only basic child support but also add-on expenses for a child, most likely through college. Automatic restraining orders are placed upon commencement of matrimonial actions to prevent unfair, unilateral transfers of marital property. Temporary support is awarded to maintain some level of financial stability for children and dependent spouses during the pendency of an action. Interim and permanent counsel fees and litigation costs are allocated between the parties to secure adequate legal representation for the non-moneyed spouses.11 These protective measures are certainly lacking in many foreign jurisdictions.
Furthermore, New York law affords broad and effective pre-trial discovery measures, such as the mandate of a Statement of Net Worth or a Financial Disclosure Affidavit. Such powerful pre-trial discovery is rarely available in foreign jurisdictions. The civil law jurisdictions generally avert American style pre-trial discovery. Even in common law countries, such as the U.K. and Australia, pre-trial discovery is more restricted.12
The overriding consideration in applying the doctrine of forum non conveniens should be whether or not a dismissal serves the interest of “substantial justice,”13 not merely to conserve judicial economy. In the interest of substantial justice and overall fairness, the courts have denied forum non conveniens dismissals in interstate matrimonial cases where such dismissal would deprive the dependent spouse of aspects of New York law favorable to her, and “undermine justice.”14
By stark contrast, the same level of consideration is not readily extended to international litigants in similar situations. For instance, in L.A.B. v. B.M, supra, note 2, a forum non conveniens dismissal was granted, inter alias, in that the defendant would be “unduly burdened” by sustaining the action in New York as he, a moneyed spouse, would have to pay for “a substantial portion of” the litigation cost.15 Some courts found the fact that a foreign dependent spouse and custodial parent may receive greater economic benefits under New York law does not justify the court’s retention of jurisdiction.16
The aspects of New York law favorable to non-moneyed, dependent spouses and children are designed to protect their rights as well as to serve the public interest in avoiding, at least in part, their reliance upon public resources. Most importantly, these laws are founded upon the equitable principles of equality, fairness and justice in familial relations. The very principles of fairness and justice mandate that the court consider whether a dismissal may prejudice the plaintiff’s rights to an equitable award of property or support. The court must weigh the public interest and the plaintiff’s loss of benefits against a moneyed defendant’s inconvenience and the administrative burden imposed on the court.17
The principle of forum non conveniens allows a court to resist imposition upon its jurisdiction when a plaintiff chooses an inconvenient venue to unduly burden or harass a defendant. However, its application is limited to “rare cases.”18 Some litigants would not hesitate to race to the forum that is the most inconvenient to their opponents. Such abuse of jurisdiction certainly warrants a forum non conveniens dismissal.
Most international matrimonial plaintiffs choose to litigate in New York, often at their own inconvenience, for legitimate reasons, such as pressing needs for support, conflicting jurisdictional rules, differing cultural values and difficulties not only in obtaining a fair adjudication but also enforcement. As such, it becomes incumbent upon New York courts to balance competing public and private interest factors when deciding the most convenient forum for all.19
1. Islamic Republic of Iran v. Pahlavi, 62 NY2d 474, at 478-484.
2. See, e.g. Liddle v. Liddle, 2010 NY Slip Op 52320 (2010), Ahmad v. Khalil, 2013 NY Slip Op 51058 (2013), L.A.B. v. B.M., 2014 NY Slip Op 51069 (2014).
3. L.A.B. v. B.M., supra 2, at 6, citing Vaage v. Lewis, 29 AD2d 315 and William v. Seaboard Airliner RR Co, 9 AD2d 268.
4. See, e.g. Ahmad v. Khalil, supra 2, at 11.
5. Ahmad v. Khalil, supra 2.
6. See, e.g. Ahmad v. Khalil, supra 3 and L.A.B. v. B.M., supra 4.
7. Gulf Oil Corp v. Gilbert, 330 US 501, 508 (1947). Also see, Ahmad v. Khalil, supra 2.
8. Ahmad v. Khalil, and L.A.B. v. B.M., supra 2.
9. See, e.g. Ahmad v. Khalil, supra 2, where Justice Sunshine retained jurisdiction over marital property located in New York and dismissed claims to properties located in Jordan
10. Scanlon v. Scanlon, 2013 NY Slip Op 51573 (2013), at 5.
11. Barbara Stark, “Only in New York: The Geography of Family Law,” 29 Wis. J.L. Gender& Soc. 1 (2014).
12. James L. Rogers, “Civil Discovery in Foreign Lands: Going Where You’re Not Wanted to Get What You Don’t Have,” 16 S. Carolina Lawyer 14 (2005).
13. Islamic Republic of Iran v. Pahlavi, supra 5.
14. See, e.g. Strand v. Strand, 395 N.Y.S.2d 254, 57 A.D.2d 1033 (1977), Caivano v. Caivano, 188 Misc.2d 552, 729 N.Y.S.2d 343 (2001) and Reish v. Reish, 2005 N.Y. Misc. Lexis 3503 (2005).
15. L.A.B. v. B.M., supra 2, at 4.
16. See, e.g. Ahmad v. Khalil, supra 2.
17. See, e.g. R.M. v. Dr. R., 2008 NY Slip Op 50364, where Justice Anthony Falanga denied a wealthy husband’s bid for a forum non conveniens dismissal of a divorce action brought by a wife on public assistance.18. Gulf Oil Corp v. Gilbert, supra 8, at 509.
19. Scanlon v. Scanlon, supra 10.
Rong Kohtz is the principal attorney of the Law Offices of Rong T. Kohtz, and can be reached at [email protected].
Originally appeared in print as Applying Forum Non Conveniens in International Matrimonial Litigation